Aspects of Houston Estate Planning

If you live in the greater Houston area, you can count on us to provide you with the essential tools to preserve your wealth and provide for your loved ones. In particular, we handle all aspects of Houston estate planning, such as:

• Wills
• Trusts
• Probate and trust administration
• Asset protection
• Business succession
• Guardianships and conservatorships
• Elder law
• Special Needs Planning
• Government entitlement programs (eg, Social Security, Medicaid, Medicare)
• Veterans Benefits

What is a Guardianship?

Guardianship takes legal rights away from the individual (the ward) who cannot reasonably exercise them and gives them to a person appointed by the court (the guardian) to care for the ward and protect his or her interests. Each guardianship is established to preserve the rights of the ward as much as possible. In each case, the court limits the guardian's decision-making power to give the ward as much independence as he or she can responsibly manage.

Generally, guardianships are needed when the ward is mentally incapacitated and is not legally allowed to sign a power of attorney document. Guardianships are essentially designed to protect incompetent people from their lack of judgment. If you've seen your family member's mental capacity deteriorate, rest assured, he or she is not alone. In Harris County, there are about 400,000 people affected by mental illness.

Types of Guardianships in Texas

There are two basic types of guardianships in Texas:

• Guardian of the Person: A person appointed to make personal, medical, and welfare decisions for the conservatee
• Guardian of the estate: a person appointed to make financial decisions regarding the assets of the conservatee who will preserve and protect those assets

Suppose you become a guardian for a sick elderly relative. In that case, he can request permission from the court to transfer a portion of his conservatee's assets to allow the conservatee to qualify for government benefits, such as Medicaid. Whether you have one or both guardianship positions, you will need to show that any expenses you have paid as a guardian are directly related to the care of your ward. Courts strictly control such expenses.

Probate

When is succession necessary?

If the decedent's property was not owned jointly or in a trust, the estate must go through a will for these assets to be transferred to the beneficiaries. The succession will also be necessary if there was no will or designated beneficiaries. Assets that commonly pass through probate are real property or vehicles titled solely in the decedent's name and the portion of a property that the decedent shared with a “tenant in common.” When probate is necessary, the executor's job is to open the case in probate court and see it through to completion. The probate court will appoint a person to act in that capacity if there is no will and no designated executor.

Two Types of Texas Probate

Under Texas law, there are two basic types of formal probate: independent probate administration and dependent probate administration.

A Houston probate attorney can help you navigate probate administration so you don't have to go it alone.

Independent Wealth Administration

Most Texas wills instruct the appointed executor to independently manage the estate as that is the simplest, most efficient, and least expensive way to proceed. However, if there is no will, or if the existing will does not provide for independent administration, it is still possible for the executor to apply to the court for permission to act as an independent executor. In this case, however, all beneficiaries must agree.

Under separate administration, the executor:

• You do not have to post a bond to insure the estate against losses suffered by your own negligent or dishonest action
• You do not need to ask the court for permission before paying debts, setting aside a family allowance, selling real property, or distributing property to beneficiaries
• You must publish a notice to potential creditors and file an inventory of assets with the court
• You must collect and safeguard the estate assets until it is time to transfer them
• You are entitled to a commission of 5 percent of all money from the estate received and paid (not including money distributed at death)

Administration Dependent on Inheritance

Although not as common, the executor or the beneficiaries of the estate can request dependent administration. This type of administration implies greater judicial supervision of succession proceedings.

Probate Documents Required in Houston, Texas

As your probate lawyer, we will make sure you have all the necessary documents and financial information to expedite the probate process.

These documents include the following:

• Original Testament (Last Will and Testament) of the deceased
• All official documents related to the decedent's assets, investments, real estate, bank accounts, and personal property
• Death certificate
• Trust agreements
• Divorce decree (if applicable)
• Retirement plan documents

Understanding that no two probate cases are identical, we are experienced and prepared to handle all types of contingencies. Even if your loved one were to die without leaving a will, we would work hard to ensure that your estate distribution wishes are carried out while continuing to follow state and federal guidelines for probate law.

What assets do not go through probate in Texas?

In a well-planned estate, many assets do not have to go through probate. This is true in cases where the decedent was married and jointly owned the majority of the assets with his spouse. It is also true if the trusts were created by an experienced probate attorney at an estate planning law firm.

Listed below are some of the assets that do not have to go through probate:

• Retirement accounts (eg, IRA or 401K) with a designated beneficiary
• Life Insurance Benefits with Individually Designated Beneficiaries
• Funds in a payable-on-death (POD) bank account
• Values recorded in transfer on death (TOD) forms
• U.S. Savings Bonds Registered on Forms Payable on Death
• Co-Owned US Savings Bonds
• Real property with a valid deed of transfer on death
• Distributions from pension plans
• Wages, salaries or commissions owed to the deceased person
• Property held in joint ownership with right of survivorship
• Property held as community property with right of survivorship

What is summary succession?

Summary probate is a shorter, less complicated, and less expensive procedure and is only possible if the estate is fairly small: $75,000 or less. This amount would not include home and exempt property such as home furnishings, appliances, automobiles, and personal effects. Beneficiaries must prepare a small property affidavit claiming rights to certain property and file the document with the local probate court.